Argument Recap: Fry v. Pliler on 3/20

The following argument recap was written by Erika Myers of the Stanford Supreme Court Litigation Clinic. Her preview of this case can be found here.

On Tuesday, the Court heard argument in Fry v. Pliler (No. 06-5427), considering whether federal habeas proceedings should use the “harmless beyond a reasonable doubt” standard established by the Court in Chapman v. California or Brecht v. Abrahamson‘s “substantial and injurious effect” standard when there has been no harmless error analysis on direct review by state courts.

Representing petitioner John Fry, Victor S. Haltom opened by arguing that every defendant claiming a constitutional trial error “is entitled to one bite at the Chapman apple.” If the state court does not apply the Chapman standard on direct review, then the federal court should use that standard on habeas review. Justice Scalia thought this rule illogical, as it made the harmless error standard on habeas review depend on “whether the error below consisted in an erroneous harmlessness determination or an erroneous determination that there was no violation.” Chief Justice Roberts joined in, saying that he understood the Brecht standard to be “based on the structural consideration” of the difference between direct and collateral review, not on the standard applied by the state court. Justice Scalia pointed out that the dissenters in Brecht believed that the standard would apply to federal habeas cases generally. Justice Breyer remarked that he didn’t “think the majority said the contrary,” adding, “I mean, I wrote it.”

Justice Breyer then questioned the practicality of expecting judges to apply the fine gradations of the various harmless error standards, saying he found it difficult to believe that – outside of a “case dreamed of by law professors” – the phrasing of a particular standard would affect a judge’s ruling. Mr. Haltom agreed that parsing the various standards was like discussing angels dancing on the head of a pin, but argued that the standard applied did make a difference in this case, in which the Ninth Circuit determined that the erroneously excluded testimony would have substantially bolstered Fry’s defense.

The argument next turned to whether the error was not harmless even under the Brecht standard. Responding to Chief Justice Roberts’s doubt that the issue fell within the question presented, Mr. Haltom contended that it was, as it went to whether the harmless error standard mattered. Justice Scalia challenged this interpretation, saying he had understood the question presented to refer to the effect of harmless error standards generally, rather than in this particular case. Justice Ginsburg agreed, suggesting that the Court would not have granted cert. on a question that only applied to one defendant. And Chief Justice Roberts later pointed out that a decision on that issue “wouldn’t help us resolve the conflict in the circuits between which standard is applicable.”

Responding to a question from Justice Stevens, Mr. Haltom argued that the burden of persuasion on harmless error rested on the government. Justice Breyer reminded him that “a majority of the Court” had said that the concept of burdens of persuasion did not apply to harmless error at all, because “it’s not a question of presenting evidence.” He reiterated his concern about the difficulty of framing harmless error standards in a way that judges could realistically apply. Justice Alito seemed less concerned, pointing out that “there are many situations in which an appellate court has to apply a legal standard to facts.”

Ross C. Moody, Deputy Attorney General, argued next on behalf of California. He began by characterizing federal habeas as “an extraordinary remedy limited by fundamental concepts of federalism, comity, and state sovereignty.” Brecht, he argued, held that “the stringent Chapman standard was inappropriate for use on collateral review.” Justice Ginsburg and Justice Scalia challenged Moody’s assertion that when a state court failed to apply the Chapman standard, the defendant should seek cert. rather than habeas review, remarking that the chances of the Court granting cert. in such cases were “negligible.”

Chief Justice Roberts then picked up Justice Breyer’s concern that harmless error standards are overly complex, particularly when combined with AEDPA. He questioned whether a federal habeas court would have to determine if the state court had unreasonably applied Chapman, and then itself apply Brecht, remarking that such a rule seemed “awfully refined.” Mr. Moody replied that federal courts could simply apply Brecht, without the interim step.

Although the Court had seemed hostile to Mr. Haltom’s claim that the error in Fry’s trial was not harmless under Brecht, much of the rest of the argument focused on the facts of the case. Justice Breyer asked Moody to reconcile the Ninth Circuit’s statements that the excluded evidence would have substantially bolstered the defense, but that its exclusion was harmless. After asserting that the extra defense evidence would have been outweighed by the strength of the prosecution, Moody attempted to move the discussion back to harmless error rules in general, but Justice Souter rejected the assertion, saying that in this case the jury was clearly “tottering on the edge” of acquittal. Moody thereafter remained bogged down in the details of the trial, as the Justices discussed possible interpretations of the lengthy jury deliberations, which evidence the jury asked to have read back to them, and what the excluded testimony would have added. Justice Breyer remarked that, instead of trying to restate the Brecht standard, the Court could itself go through the record and apply the standard, “to show by example.”

Next, Patricia A. Millett, Assistant to the Solicitor General, argued on behalf of the United States as amicus curiae in support of respondent. Like Mr. Moody, she began by arguing that “there is a deep difference, a deep distinction, between collateral review and direct review,” and that different harmless error standards were therefore appropriate. But, like Mr. Moody, she quickly got dragged into an argument about the facts. When Justice Stevens later returned to the burden of persuasion issue, Ms. Millett reiterated Justice Breyer’s point that the concept of burdens of persuasion did not apply, but admitted that the state would lose if the judge were in equipoise about harmless error.
In response to a question from Justice Stevens about the proper application of Brecht to the facts, she conceded that the trial was close but argued that two federal courts had already gone through a careful and methodical Brecht analysis, pointing out that the district court examined “more than 5,000 transcript pages, 11 weeks of trial, more than 100 witnesses.” Chief Justice Roberts glumly remarked, “I suppose if we’re going to apply the Brecht standard ourselves, we would have to do the same thing.”

Several Justices, especially Justice Breyer, seemed dissatisfied with harmless error standards in general, viewing them as too complicated and burdensome for judges to apply. However, Chief Justice Roberts and Justices Scalia and Breyer all openly stated their position that Brecht should apply to federal habeas cases generally, and none of the Justices, except perhaps Justice Ginsburg, seemed receptive to Haltom’s argument that every defendant should get a bite at the Chapman apple. On the other hand, the Court was surprisingly willing to consider Haltom’s claim that the error in Fry’s trial was harmless under Brecht. While Justices Scalia and Alito seemed to agree with the Chief Justice that the claim was not within the question presented—and was not the type of issue that the Court should decide—the rest of the Court seemed eager to dig into the facts of Fry’s trial. Justice Breyer may find it difficult to persuade the other Justices that the Court should lead by example and apply Brecht itself, but this argument seems like something of an exception to the rule that the Court cares more about generally applicable standards than the particular facts of the case before it.